Skowhegan Bank v. Farrar , 46 Me. 293 ( 1858 )

The opinion of the Court was delivered by

Appleton, J.

The trustee writ in this case bears date Nov. 24, 1857. It appears, from the disclosure of the supposed trustee, that Messrs. Farrar & Cutler, the debtors, on Dec. 6, 1856, mortgaged their personal property to Messrs. Dale, of Boston, who, in the February following, appointed the trustee, as their agent, to manage and dispose of the same, and that he has since acted as such, and was so acting at the time of the service of the trustee writ upon him.

By R. S., 1857, c. 86, § 4, it is provided that a service of the trustee process “ on the trustee, shall bind all goods, effects or credits of the principal defendant, intrusted and deposited in Ms possession, to respond the final judgment in the action, as when attached by the ordinary process.”

To constitute the relation of trustee, there must be a privity of contract, express or implied, between.the principal debtor and the supposed trustee, or the former must have intrusted and deposited goods and effects with the latter. “ It has never been considered,” remarks Redfield, J., in Barker v. Esty, 19 Vermont, 131, “that it extended to any other class of debtors, or demands, than such as are the ordinary result of contract, express or implied, creating a fiduciary relation. It is the fidii commissarius of the civil, and the factor of the common law.” The mere possession of property, without any claim to hold it against the owner by virtue of any contract or agreement, would not seem to be sufficient to hold one as trustee. Staniels v. Raymond, 4 Cush. 314. The trustee cannot be charged, unless he owes the principal debtor or has property of his in his possession. The trustee, in this case, holds the property mortgaged as the agent of the mortgagees, and is accountable to them. The principal debtors have neither intrusted nor deposited any goods or effects in his hands, so far as relates to the mortgaged goods, and he cannot be charged as their trustee on account of them.

The trustee, not having in his hands any goods, effects or credits of the principal debtors, so as to be regarded in any way as their trustee, is not within § 32; which applies only where the relation of trustee arises. But here, there being no privity of contract, express or implied, the section does not apply.

The alleged trustee has not in his possession any goods, effects or credits of the principal defendants, which he holds under a conveyance fraudulent and void as to the defendants’ creditors, for he has no conveyance whatever from them. The disclosure, therefore, cannot be regarded as within § 63.

Neither is the trustee to be charged by reason of the assignment to him by the Mercantile Bank of a mortgage, including the real and personal estate of Lysander Cutler, one of the principal defendants. The trustee gave his own notes as the consideration of the assignment. Nothing in the disclosure indicates that this mortgage was fraudulent or that it has been paid. The trustee, taking the assignment, is entitled to the same protection as if he had been the original mortgager. The plaintiffs have not brought the case within § 50. Atkins v. Vickery, 42 Maine, 132.

The trustee cannot be charged for the negotiable note of Abbott, that being a mere chose in action.

The safe is included in the phrase “ all the desks, chairs, chests, trunks and office furniture.” The assignment is most general, and the intention of the assignor was to pass all the articles of use, in the office at the time.

The trustee is to be charged for the winnowing machine.

Tenney, C. J., and Rice, Cutting, May, and Davis, J. J., concurred.